Thursday, February 21, 2013Last Update: 3:00 PM PT

Rehab-Minded Sentence Needed to Be Checked

(CN) - A federal appeals court had the power to correct an overly long sentence that aimed to get its recipient off drugs, the U.S. Supreme Court ruled. In early 2010, Armarcion Henderson pleaded guilty to illegal firearm possession, and a federal judge sentenced him to five years in prison, above the recommended guidelines range, to qualify him for "the treatment and the counse[l]ing that this defendant needs right now." A year later, the Supreme Court banned lengthening sentences on these grounds in the case Tapia v. United States. In that unanimous ruling, Justice Elena Kagan wrote for the court: "If Congress had similarly meant to allow courts to base prison terms on offenders' rehabilitative needs, it would have given courts the capacity to ensure that offenders participate in prison correctional programs. But in fact, courts do not have this authority." Henderson's lawyer cited this decision in appealing his sentence to the 5th Circuit. While the appellate court conceded that Henderson's sentencing judge had made an error, it found that the mistake did not rise to the level of a "plain error" needed to reverse the decision. The Supreme Court said it took up the case to determine whether "plain" means that an error is apparent when a trial judge receives the case or when it is reviewed on appeal. In finding Wednesday that the 5th Circuit should have corrected the sentencing error, an six-justice majority proposed a thought experiment. "Imagine three virtually identical defendants, each from a different circuit, each sentenced in January to identical long prison terms, and each given those long sentences for the same reason, namely to obtain rehabilitative treatment," Justice Stephen Breyer wrote for the majority. "Imagine that none of them raises an objection. In June, the Supreme Court holds this form of sentencing unlawful. And, in December, each of the three different circuits considers the claim that the trial judge's January-imposed prison term constituted a legal error. Imagine further that in the first circuit the law in January made the trial court's decision clearly lawful as of the time when the judge made it; in the second circuit, the law in January made the trial court's decision clearly unlawful as of the time when the judge made it; and in the third circuit, the law in January was unsettled." Applying the words "plain error" as of the time of appellate review "would treat all three defendants alike," he added. "To interpret 'plain error' differently, however, would treat these three virtually identical defendants differently, allowing only the first two defendants, but not the third defendant, potentially to qualify for [appellate] relief," the opinion states. Government lawyers argued that changing the "plain error" standard would inundate the courts with new appeals. But Breyer said the majority's holding "will not open any 'plain error' floodgates." "The problem here arises only when there is a new rule of law, when the law was previously unsettled, and when the District Court reached a decision contrary to the subsequent rule," he wrote. In a dissenting opinion, Justice Antonin Scalia chided his colleagues for mistakenly seeking to resolve a "conflict" between two "competing ... legal principles." "Ours, alas, is the more mundane and lawyerly task of deciding whether the Rules of Criminal Procedure make the failure of timely objection an exception to the rule that an appellate court applies the law in effect at the time of its judgment," he wrote. "Having addressed itself to the wrong question, the Court unsurprisingly gives the wrong answer." He said that the "plain error" clause in Rules of Criminal Procedure set limits to prevent lawyers from appealing on grounds that they did not object to at trial. "The court sees no harm in its evisceration of the contemporaneous-objection rule, disbelieving that a lawyer would 'deliberately forgo objection now because he perceives some slightly expanded chance to argue for 'plain error,'" the dissent states. "It is hard to say whether this conclusion springs from a touching faith in the good sportsmanship of criminal defense counsel or an unkind disparagement of their intelligence. Where a criminal case always has been, or has at trial been shown to be, a sure loser with the jury, it makes entire sense to stand silent while the court makes a mistake that may be the basis for undoing the conviction." "Fair trial will suffer from the ensuing disregard of the now unenforceable contemporaneous-objection rule," Scalia concluded. Fellow conservative Justices Clarence Thomas and Samuel Alito joined dissent and its grim conclusion.